UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4272

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LARRY LAVONNE BERRY,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:08-cr-00247-FL-1)

Submitted: September 12, 2011 Decided: September 21, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North 

Carolina, for Appellant. Edward D. Gray, Jennifer P. MayParker, Assistant United States Attorneys, Raleigh, North 

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Larry Berry pled guilty pursuant to a plea agreement 

to armed bank robbery and aiding and abetting, in violation of 

18 U.S.C.A. §§ 2, 2113 (West 2000 & Supp. 2011); using a firearm 

during a crime of violence and aiding and abetting, in violation 

of 18 U.S.C.A. §§ 2, 924(c)(1)(A) (West 2000 & Supp. 2011); 

interference with commerce by robbery and aiding and abetting, 

in violation of 18 U.S.C. §§ 2, 1951 (2006); and being a felon 

in possession of a firearm, in violation of 18 U.S.C.A.

§§ 922(g)(1), 924 (West 2000 & Supp. 2011), and was sentenced to 

302 months in prison. Counsel has filed an appeal pursuant to 

Anders v. California, 386 U.S. 738 (1967). 

In the Anders brief, counsel concedes that the 

appellate waiver contained in Berry’s plea agreement precludes 

his appeal as to his sentence, but nonetheless suggests that the 

district court erred when it calculated Berry’s Guidelines 

ranges. Berry has filed a pro se supplemental brief, as well as 

a supplement to his pro se supplemental brief, in which he 

challenges the district court’s decision to sentence him as an 

armed career criminal under the Armed Career Criminal Act, 18 

U.S.C.A. § 924(e) (West 2000 & Supp. 2011). The Government 

moves to dismiss the appeal as to Berry’s sentence based on the 

appellate waiver in Berry’s plea agreement. We affirm in part 

and dismiss in part.
3

A defendant may waive the right to appeal if that 

waiver is knowing and intelligent. See United States v. 

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent 

review of the record supports the conclusion that Berry 

voluntarily and knowingly waived his right to appeal his 

sentence. Thus, we conclude that the waiver is valid and 

enforceable.

However, even a valid waiver does not waive all 

appellate claims. Specifically, a valid appeal waiver does not 

preclude a challenge to a sentence on the ground that it exceeds 

the statutory maximum or is based on a constitutionally 

impermissible factor such as race, arises from the denial of a 

motion to withdraw a guilty plea based on ineffective assistance 

of counsel, or relates to claims concerning a violation of the 

Sixth Amendment right to counsel in proceedings following the 

guilty plea. See United States v. Johnson, 410 F.3d 137, 151 

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th 

Cir. 1993). Moreover, the appellate waiver in Berry’s plea 

agreement did not waive: (1) any challenges he may have if his 

sentence were above the Guidelines range calculated at 

sentencing; (2) certain ineffective assistance of counsel or 

prosecutorial misconduct claims; or (3) any claims Berry may 

have pertaining to his conviction. Berry’s sentence is within 
4

the Guidelines ranges calculated at sentencing and he raises no 

claims that fall outside the scope of his appellate waiver. 

Thus, we grant the Government’s motion to dismiss the 

appeal as to Berry’s sentence. Although we are charged under 

Anders with reviewing the record for unwaived error, we have 

reviewed the record in this case and have found no unwaived and 

meritorious issues for appeal. We therefore dismiss the appeal 

in part and affirm in part. This court requires that counsel 

inform Berry, in writing, of his right to petition the Supreme 

Court of the United States for further review. If Berry 

requests that a petition be filed, but counsel believes that 

such a petition would be frivolous, then counsel may move this 

court for leave to withdraw from representation. Counsel’s 

motion must state that a copy thereof was served on Berry. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

DISMISSED IN PART;

AFFIRMED IN PART